Terms & Conditions
OFFER AND ACCEPTANCE
These Terms and Conditions of Sale (these “Terms”) shall apply to all sales of products (the “Products”) by Invisible Sentinel, INC (“IS”) to the buyer thereof (“Buyer”). All quotations and price lists issued by IS are offers to supply the Products and Services described therein under and subject to these Terms, and Buyer’s purchase order issued to IS for Products and Services, if any, shall be considered an acceptance of IS’ offer set forth in its quotation or price list, as the case may be, under and subject to these Terms. No other terms and conditions, including the terms and conditions set forth or referenced in Buyer’s purchase order, shall be effective between IS and Buyer in relation to the purchase and sale of Products and Services unless such other term and condition is specifically agreed to in a writing signed by both IS and Buyer, which writing must reference the specific section of these Terms being amended or superseded. If, notwithstanding the foregoing, Buyer’s purchase order is construed to be an offer and IS’ activities are deemed to be an acceptance, IS’ acceptance is expressly conditioned on Buyer’s agreement to these Terms as the sole and exclusive statement of the contract between Buyer and IS with respect to the Products and Services specified in the purchase order.
ORDERS AND PRICES
All prices set forth in IS’ quotations, price lists, invoices and other documents are stated in U.S. dollars and, unless otherwise indicated, are based on EXW (Incoterms 2000) IS’ warehouse. [All quotations and price lists are valid for thirty (30) days from the date thereof unless the quotation or price list states otherwise. Orders placed after the expiration of the quotation or price list will be invoiced at IS’ then-current rate.] Unless otherwise stated in the quotation or price list, any and all sales, excise, value-added and other taxes in relation to the Product and Services (other than taxes on IS’ net income) and all out-of-pocket costs and expenses incurred by IS, including, but not limited to, packing, freight, insurance and bank charges are not part of the price for the Products or Services and will be added to IS’ invoice for the Products and Services.
Buyer shall pay the net amount shown on each invoice from IS no later than thirty (30) days after the date shown on each such invoice without setoff of any kind. [Such invoice may include an option by which Buyer may obtain a discount from the net amount of the invoice by paying with cash or check (not credit card) within fifteen (15) days of the date of the invoice. Notwithstanding the foregoing, IS may require that payment be made in advance (such as by credit card) or on a C.O.D. basis.
Buyer grants IS a purchase money security interest in the Products delivered to Buyer until the entire balance of the invoice price and all other monies payable pursuant to these Terms for such Products are paid in full.
IS may suspend performance of any order, require payment in cash or require security or other assurance satisfactory to IS when, in IS’ opinion, based on Buyer’s financial condition or any other reason, such action is warranted.
IS shall have the right to make changes in design or specifications at any time.
Buyer may cancel its order for Products and Services. In the of a cancellation, Buyer must pay for all Products delivered to Buyer before IS receives written notice of such cancellation as well as IS’ restocking charge for any Products in IS’ possession but not yet delivered to Buyer. All cancellations must be submitted to IS at its U.S. headquarters in Philadelphia, Pennsylvania in writing.
All Products will be delivered in accordance with the shipment clause specified in Section 2. All dates quoted or referred to in the acknowledgement for delivery are good faith estimates only and not binding on IS. Any claims for shortage shall conclusively be deemed waived unless written notice of such claims is received by IS within [eight] calendar days after delivery to Buyer.
IS shall not be liable for delays, defaults or failures in rendering performance if such delays, defaults or failures are due to causes beyond the reasonable control of IS including (a) acts of God, (b) terrorism, war or acts of public enemy, (c) acts of any governmental authority, (d) fires, explosions or other casualty, (e) epidemics and quarantine restrictions, (f) strikes, slowdowns or labor strife of any kind, (g) freight embargoes, (h) delays or failures by suppliers and (i) shortages including those that cause exceptional price increases. If IS is unable to fulfill its total delivery commitment to Buyer for any of the above specified reasons, Buyer agrees to accept partial deliveries as they become available from IS.
IS warrants that: (a) the Products will be free from material defects in material and workmanship until their respective expiration dates; and (b) when used in in accordance the package insert, the Products will operate substantially in accordance with specifications. All claims for breach of the foregoing warranty must be made within twelve (12) months after delivery of the Products or supply of the Service to Buyer.
IS’ sole obligation and Buyer’s sole and exclusive remedy for breach of the foregoing warranties shall be for IS, at its option, to replace the non-conforming Product at IS’ cost and expense other than shipping.
IS shall be given reasonable opportunity to investigate any and all claims concerning allegedly non-conforming Products, and no Products shall be returned to IS until after IS has had a reasonable opportunity to investigate.
The foregoing warranties shall be void with respect to Products that (a) have been repaired or altered by anyone other than IS, (b) have not been stored or maintained in accordance with any handling or operating instructions supplied by IS, or (c) have been subject to unusual physical or other stress, misuse, abuse, negligence or accidents.
Buyer acknowledges that the Product is a screening product that can, with normal operation, generate a false negative as set forth in the specifications for the Product and that positive results must be confirmed by other methods as described in the package insert.
EXCEPT AS SET FORTH IN SECTION 8, IS MAKES NO AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE PRODUCTS AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL IS’ LIABILITY TO BUYER EXCEED THE PRICE PAID BY BUYER FOR THE PARTICULAR UNIT OF PRODUCT THAT GIVES RISE TO THE CLAIM, WHETHER THE LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE DESIGN, MANUFACTURE, ASSEMBLY, SALE OR USE OF THE PRODUCTS OR OTHERWISE.
IN NO EVENT SHALL IS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE OR PROFITS. IN NO EVENT SHALL IS BE LIABLE FOR ANY PROPERTY OF BUYER (SUCH AS ANIMALS) OR RECALL OF FOOD TESTED OR LOTS OF FOOD SELECTED SAMPLES OF WHICH WERE TESTED USING THE PRODUCT INCLUDING RECALLS IN CONNECTION WITH A BREACH OR WARRANT OR FALSE NEGATIVE TEST RESULTS GENERATED BY A PRODUCT.
IS will indemnify Buyer against any and all claims of third parties that the normal and customary use of the Products, as delivered to Buyer and without modification by any person other than IS, infringes or misappropriates any United States patent. At IS’ sole option, IS may modify the affected Products so that they become non-infringing or replace the affected Products with non-infringing items that are functionally similar. If IS determines that neither of the foregoing options is commercially reasonable to it, IS will accept the return of the affected Products and refund the unit purchase price paid therefor (which, for the avoidance of doubt shall exclude amounts received for packing, freight, insurance, bank charges and taxes). IS’ obligations under this Section 10 are expressly contingent on Buyer: (a) giving Buyer prompt notice of the claim; (b) giving Buyer sole control over the investigation, defense and settlement of the claim using counsel of IS’s choosing; and (c) refraining from settling the claim without IS’ consent in its sole discretion. This Section 10 states the entire liability of IS with respect to claims of infringement or misappropriation.
Buyer acknowledges that each unit of the Product is designed and intended to be used only one time for a single test and that any activities directed to making a unit of Product capable of supporting more than one test, whether within or outside of the specifications of the Product, is an infringing reconstruction of such unit of the Product.
Neither party shall have the right or power to assign its rights or obligations pursuant to these Terms without the prior written consent of the other party, which consent may be withheld for any reason; provided, however that IS shall have the right without Buyer’s consent to assign its rights and delegate its obligations pursuant to these Terms to any of its affiliates, or to any successor of its business, whether, by merger, sale of stock, sale of assets or otherwise; provided that such affiliate or successor must either assume the obligations of these Terms in writing or by bound by the obligations of these Terms by operation of law.
APPLICABLE LAW; JURISDICTION AND VENUE.
These Terms and its performance shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania applicable to contracts entered into by residents of Pennsylvania and wholly performed in Pennsylvania. The United Nations Convention on Contracts for the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”) and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980, shall not apply to these Terms or its performance. In the event of any dispute or controversy between the parties in connection with this Agreement, both parties irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts with jurisdiction over IS’ then-current headquarters. The prevailing party in any litigation between Buyer and IS concerning these Terms shall be entitled to an award of its costs and expenses incurred in connection with such litigation including its attorneys’ fees and costs and expenses of experts.
IS’ quotation, these Terms and such other terms and conditions as are specifically agreed to in a writing signed by both IS and Buyer, which writing references the specific section of these Terms being amended or superseded, constitute the final, complete and fully integrated agreement between Buyer and IS with respect to the supply of the Products and Services and supersedes all prior and contemporaneous discussions, agreements, negotiations, understandings and documents with respect to the supply of the Products and Services. This Agreement may not be amended except by a writing signed by authorized representatives of Buyer and IS.